Citation Nr: 0803022
Decision Date: 01/28/08 Archive Date: 02/04/08
DOCKET NO. 05-32 309 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUES
1. Entitlement to an increased rating for service-connected
gunshot wound, left arm, currently evaluated as 20 percent
disabling.
2. Entitlement to special monthly compensation based on the
need for regular aid and attendance or by reason of being
housebound.
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The veteran had recognized guerilla service from October 1942
to April 1945.
This matter came before the Board of Veterans' Appeals (BVA
or Board) on appeal from a March 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, the Republic of the Philippines, which denied the
veteran's claim for an increased rating for service-connected
gunshot wound, left arm, evaluated as 20 percent disabling,
and denied a claim for special monthly compensation based on
the need for regular aid and attendance or by reason of being
housebound.
FINDINGS OF FACT
1. The veteran's service-connected residuals of gunshot
wound to the left arm are not manifested by more than a
moderately severe disability.
2. The evidence of record does not establish that the
veteran is in need of regular aid and attendance, or that he
is permanently housebound, by reason of service-connected
disability.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 20 percent
for service-connected residuals of gunshot wound to the left
arm have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.73, Diagnostic Code
5305 (2007).
2. The criteria for special monthly compensation by reason
of being in need regular of aid and attendance or by reason
of being housebound have not been met. 38 U.S.C.A. §§ 1114,
5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.159, 3.350, 3.352 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran asserts that an increased evaluation is warranted
for his service-connected residuals of a gunshot wound to the
left arm, currently evaluated as 20 percent disabling. He
argues that he has a decreased range of motion in his left
forearm, decreased gripping ability, pain, weakness, fatigue
and numbness, "limited and uncertain movement," and that he
is unable to stretch upward or backward due to pain.
In January 1959, the RO granted service connection for GSW
(gunshot wound), left arm, evaluated as 20 percent disabling.
There was no appeal, and the RO's decision became final. See
38 U.S.C.A. § 7105(c) (West 2002). In December 2004, the
veteran filed a claim for an increased rating. In March
2005, the RO denied the claim. The veteran has appealed.
Disability evaluations are determined by comparing the
veteran's present symptomatology with the criteria set forth
in the VA' s Schedule for Ratings Disabilities. 38 U.S.C.A.
§ 1155; 38 C.F.R. § Part 4.
The words "slight," "moderate" and "severe" as used in
the various diagnostic codes are not defined in the VA
Schedule for Rating Disabilities. Rather than applying a
mechanical formula, the Board must evaluate all of the
evidence, to the end that its decisions are "equitable and
just." 38 C.F.R. § 4.6 (2007). Use of terminology such as
"severe" by VA examiners and others, although an element of
evidence to be considered by the Board, is not dispositive of
an issue. All evidence must be evaluated in arriving at a
decision regarding an increased rating. 38 C.F.R. §§ 4.2,
4.6 (2007).
As for the history of the disability in issue, see 38 C.F.R.
§ 4.1 (2007), the veteran's service records indicate that he
reported that he was wounded in the left arm in combat in the
Philippines, with about 17 days of hospitalization. His
separation examination report, dated in March 1946, indicates
that he had no musculoskeletal defects, and no neurological
diagnosis, providing evidence against this claim.
A VA examination report, dated in October 1958, showed that
the veteran was noted to have a history of a through-and-
through gunshot wound to the left arm. His complaints were
noted to be numbness and muscular cramps in his left upper
extremity. An entrance scar was noted to be 31/2 inches long,
superior to the lateral epicondyle, and the exit scar was
noted to be 3/8 inches in diameter, located 1 1/4 inches
posterior to the lateral epicondyle. The scars were non-
adherent, non-raised, and non-tender, providing no basis to
award the veteran a separate compensable evaluation for
scars.
The 1958 examination indicated possible muscle damage of 25
percent at the brachialis and triceps brachii. On
examination, there was no atrophy, deformity or shortening,
and no limitation of motion. Left arm muscle strength was
impaired 20 percent. The relevant diagnosis was gunshot
wounds, through and through, with healed scars, left arm. An
accompanying X-ray report for the left arm indicated that
there was no definite evidence of fracture or dislocation,
and no osteolytic or osteoblastic bone changes present,
providing more evidence against this claim.
The Board must note that the evidence shows that the veteran
is right-handed. See e.g., VA examination report, dated in
October 1958. Therefore, his service-connected disability in
issue involves the "minor" upper extremity.
The veteran's left arm muscle disability is currently
evaluated as "moderately severe", and a corresponding 20
percent rating is in effect under 38 C.F.R. § 4.73,
Diagnostic Code (DC) 5305. DC 5305 provides evaluations for
disability of Muscle Group V. The function of these muscles
are as follows:
The factors to be considered in evaluating disabilities
residual to healed wounds involving muscle groups are set
forth in 38 C.F.R. §§ 4.55, 4.56. A muscle injury evaluation
will not be combined with a peripheral nerve paralysis
evaluation of the same body part unless the injuries affect
entirely different functions. 38 C.F.R. § 4.55(a). For VA
rating purposes, the cardinal signs and symptoms of muscle
disability are loss of power, weakness, lowered threshold of
fatigue, fatigue-pain, impairment of coordination and
uncertainty of movement. See 38 C.F.R. § 4.56(c).
A "moderately severe" muscle wound is a through and through
or deep penetrating wound by small high velocity missile or
large low-velocity missile, with debridement, prolonged
infection, or sloughing of soft parts, and intermuscular
scarring. 38 C.F.R. § 4.56(d)(3)(i) (2007). Objective
findings of a moderately severe muscle wound are manifested
by entrance and (if present) exit scars indicating track of
missile through one or more muscle groups. Id. at
(d)(3)(iii). Indications on palpation of loss of deep
fascia, muscle substance, or normal firm resistance of
muscles compared with sound side. Tests of strength and
endurance compared with sound side demonstrate positive
evidence of impairment. Id.
In order to warrant an increased rating for his left arm, the
veteran must show "severe" muscle disability, which
provides for a 30 percent rating for severe disability of the
non-dominant arm. See 38 C.F.R. § 4.73, DC 5305.
The type of injury associated with a severe disability of
muscles is a through and through or deep penetrating wound
due to high-velocity missile, or large or multiple low
velocity missiles, or with shattering bone fracture or open
comminuted fracture with extensive debridement, prolonged
infection, or sloughing of soft parts, intermuscular binding
and scarring. A history consistent with this type of injury
would include service department record or other evidence
showing hospitalization for a prolonged period for treatment
of wound; record of consistent complaint of cardinal signs
and symptoms of muscle disability, worse than those shown for
moderately severe muscle injuries, and, if present, evidence
of inability to keep up with work requirements.
Objective findings of a severe disability would include
ragged, depressed and adherent scars indicating wide damage
to muscle groups in missile track; palpation shows loss of
deep fascia or muscle substance, or soft flabby muscles in
wound area; muscles swell and harden abnormally in
contraction; tests of strength, endurance, or coordinated
movements compared with the corresponding muscles of the
uninjured side indicate severe impairment of function.
A severe injury would also show X-ray evidence of minute
multiple scattered foreign bodies indicating intermuscular
trauma and explosive effect of the missile; adhesion of scar
to one of the long bones, scapula, pelvic bones, sacrum or
vertebrae, with epithelial sealing over the bone rather than
true skin covering in an area where bone is normally
protected by muscle; diminished muscle excitability to pulsed
electrical current in electrodiagnostic tests; visible or
measurable atrophy; adaptive contraction of an opposing group
of muscles; atrophy of muscle groups not in the track of the
missile, particularly of the trapezius and serratus in wounds
of the shoulder girdle; induration or atrophy of an entire
muscle following simple piercing by a projectile.
Under 38 C.F.R. § 4.71, Plate I (2007), the standard range of
motion for the elbow is extension from 0 to 145 degrees.
The major evidence consists of three VA examination reports,
dated in February 2005. A VA muscles examination report
shows that the veteran complained of moderately intense pain
that lasted the entire day, on a daily basis, and that his
pain was precipitated by cold temperature, movement, and
weight-bearing. He stated that he could not move his left
upper extremity during flare-ups, and that he had pain on
flexion, and weakness with repetitive movement. His history
was noted to show a gunshot wound of the left arm, with
injury to the left biceps and left triceps, with no
associated injuries affecting the bony structures, nerves, or
vascular structures. On examination, tissue loss was noted,
as was sensitivity. There were no adhesions, no tendon
damage, no bone, joint or nerve damage, and no muscle
herniation. Muscle strength in the left upper extremity was
4/5. He was able to flex his left elbow and extend against
gravity but not against resistance, and there was pain on
left shoulder movement. The left elbow had flexion to 130
degrees, and extension to 0 degrees, with painful and
weakness on repetitive movement. The diagnosis was injury to
left biceps due to GSW, left arm, through and through, with
residuals. The examiner concluded that the veteran's
service-connected left arm injury was a "minor contributor
to his helpless state."
Such a statement is found to provide highly probative
evidence against this claim.
The Board parenthetically notes that to the extent that the
report indicates that the veteran had a loss of left shoulder
motion, with pain, stiffness, and lack of endurance, that
service connection is not in effect for a left shoulder
condition, providing more evidence against this claim.
A VA scar examination report notes current sensitivity, with
an entry scar of 1 x 1.2 centimeters (cm.) oval-shaped scar
over the left anterolateral aspect of the middle third of the
left arm, and an exit scar of 1 x 1 cm., round in shape, over
the posterolateral aspect of the left arm, middle third. The
report indicates that the scars were not painful, that there
was no adherence to the underlying tissue, that the skin
texture was irregular, and that the scars were superficial,
flat, stable, and not deep. The report also indicates that
there was no inflammation, edema, or keloid formation, and
that there was slight hypopigmentation. There was no area of
induration or inflexibility of the skin in the area of the
scar, and there was no associated limitation of motion. The
diagnosis was healed scars, left arm, due to through and
though gunshot wound. The report is accompanied by a color
photograph, providing evidence against a finding that a
separate evaluation is warranted for the scar.
A VA "aid and attendance or housebound" examination report
notes that the veteran's left arm had weakness, and that
there was decreased grip strength, and that his present upper
extremity function would require assistance when feeding and
changing clothes due to poor vision. The relevant diagnosis
was injury to left arm due to gunshot wound. The report
fails to indicate that the sole service connected disorder
has caused the veteran to be housebound, providing limited
evidence against this claim.
In this case, the findings do not show that the veteran has
severe impairment of Muscle Group V. Although the veteran
had a through and through wound, there is no objective
findings of a severe disability such as depressed and
adherent scars indicating wide damage to muscle groups in
missile track, loss of deep fascia or muscle substance, or
soft flabby muscles in wound area, muscle swelling and
hardening abnormally in contraction, or severe impairment of
strength, endurance, or coordinated movements compared with
the corresponding muscles of the uninjured side. X-rays
showed no scattered foreign bodies in soft tissue. There was
further no adhesion of scar to bone. There was no finding of
visible or measurable atrophy. Adaptive contraction of an
opposing group of muscles was not noted, nor was atrophy of
muscle groups not in the track of the missile. The residuals
of gunshot wound of the left arm appear to principally
include some limitation of motion, and weakness, however,
left arm muscle strength was still noted to be 4/5, with
elbow extension to 0 degrees, and flexion to 130 degrees.
It is important for the veteran to understand that without
taking into consideration his complaints, the current
evaluation could not be justified.
As the preponderance of the evidence indicates that the
veteran's muscle disability is not more than moderately
severe, the Board concludes that the disability picture for
service-connected gunshot wound of the left arm does not more
nearly approximate the criteria for a 30 percent evaluation
under Diagnostic Code 5305.
The Board has considered whether an increased evaluation may
be assigned on the basis of functional loss due to the
veteran's subjective complaints of pain under 38 C.F.R. §§
4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-205
(1995); VAOPGCPREC 36-97, 63 Fed. Reg. 31,262 (1998). In
this case, when the ranges of motion in the left elbow are
considered together with the evidence showing functional loss
-- to include 4/5 strength, and the lack of evidence of
neurologic deficit, or muscle atrophy - - the Board finds
that there is insufficient evidence of objective pain on
motion, or any other functional loss, to warrant an increased
evaluation.
The Board finds that the service and post-service medical
records provide evidence against his claim, outweighing the
veteran's statements.
In summary, there is insufficient evidence of functional loss
due to Muscle Group V pathology to support a conclusion that
the loss of motion in the left arm more nearly approximates
the criteria for a 30 percent rating under DC 5305, even with
consideration of 38 C.F.R. §§ 4.40 and 4.45.
Finally, in Esteban v. Brown, 6 Vet. App. 259, 262 (1994),
the Court held that evaluations for distinct disabilities
resulting from the same injury could be combined so long as
the symptomatology for one condition was not "duplicative of
or overlapping with the symptomatology" of the other
condition. In this case, the veteran does not contend, and
the evidence does not show, that a separate compensable
rating is warranted for any scars or any other problem
associated with the service connected disorder.
For example, under the provisions of 38 C.F.R. § 4.118,
Diagnostic Codes 7803 and 7804 (2007), a 10 percent
evaluation is warranted for superficial scars that are
painful on examination, or superficial and unstable.
However, the evidence shows that the veteran's scars were
noted to be nontender, superficial, stable, and not fixed to
underlying bone. They were also noted not to be manifested
by limitation of motion. See 38 C.F.R. § 4.118, DC 7805
(2007). The Board therefore finds that the veteran does not
have compensable manifestations of his scars under 38 C.F.R.
§ 4.118, and that the assignment of a separate 10 percent
evaluation for scarring is not warranted.
In deciding the veteran's increased evaluation claim, the
Board has considered the determination in Hart v. Mansfield,
No. 05-2424 (U.S. Vet. App. Nov. 19, 2007), and whether the
veteran is entitled to an increased evaluation for separate
periods based on the facts found during the appeal period.
As noted above, the Board does not find evidence that the
veteran's left arm evaluation should be increased for any
other separate period based on the facts found during the
whole appeal period. The evidence of record from the day the
veteran filed the claim to the present supports the
conclusion that the veteran is not entitled to additional
increased compensation during any time within the appeal
period. The Board therefore finds that the evidence is
insufficient to show that the veteran had a worsening of his
left arm disability such that a rating in excess of 20
percent is warranted.
"Special monthly compensation" is payable to a person who
is permanently bedridden or so helpless as a result of
service-connected disability that he is in need of the
regular aid and attendance of another person. 38 U.S.C.A. §
1114(l); 38 C.F.R. § 3.350(b). The following will be
accorded consideration in determining the need for regular
aid and attendance: Inability of a claimant to dress or
undress him or herself, or to keep him or herself ordinarily
clean and presentable; frequent need of adjustment of any
special prosthetic or orthopedic appliances which by reason
of the particular disability cannot be done without aid (this
will not include the adjustment of appliances which normal
persons would be unable to adjust without aid, such as
supports, belts, lacing at the back, etc.); inability of a
claimant to feed him or herself through loss of coordination
of the upper extremities or through extreme weakness;
inability to attend to the wants of nature; or incapacity,
physical or mental, which requires care or assistance on a
regular basis to protect a claimant from the hazards or
dangers incident to his or her daily environment. 38 C.F.R.
§ 3.352(a).
It is not required that all of the disabling conditions
enumerated in 38 C.F.R. § 3.352(a) be found to exist before a
favorable rating may be made. The particular personal
functions which the veteran is unable to perform should be
considered in connection with his or her condition as a
whole. It is only necessary that the evidence establish that
the veteran is so helpless as to need regular aid and
attendance, not that there is a constant need. See Turco v.
Brown, 9 Vet. App. 222 (1996). "Bedridden" will be that
condition which, through its essential character, actually
requires that the claimant remain in bed. The fact that
claimant has voluntarily taken to bed or that a physician has
prescribed rest in bed for the greater or lesser part of the
day to promote convalescence or cure will not suffice. 38
C.F.R. § 3.352(a).
If the veteran does not qualify for increased benefits for
aid and attendance, increased compensation benefits may still
be payable if the veteran has a single service-connected
disability rated as 100 percent and: (1) Has additional
service-connected disability or disabilities independently
ratable at 60 percent, separate and distinct from the 100
percent service-connected disability and involving different
anatomical segments or bodily systems, or (2) Is permanently
housebound by reason of service-connected disability or
disabilities. This requirement is met when the veteran is
substantially confined as a direct result of service-
connected disabilities to his or her dwelling and the
immediate premises or, if institutionalized, to the ward or
clinical areas, and it is reasonably certain that the
disability or disabilities and resultant confinement will
continue throughout his or her lifetime. 38 U.S.C.A. §
1114(s); 38 C.F.R. § 3.350(i).
The Board has previously discussed the veteran's February
2005 VA muscle and scar examination reports, supra. In
addition, the Board noted that a February 2005 VA "aid and
attendance or housebound" examination report indicated that
the veteran's left arm had weakness, that there was decreased
grip strength, and that his present upper extremity function
would require assistance when feeding and changing clothes
due to poor vision. The report further noted the following:
the veteran was not hospitalized or permanently bedridden; he
has glaucoma of both eyes and is blind due to this condition;
he presented in a wheelchair and also used a walker, he left
home at least once a year; he had a wide stance with a
shuffling gait; he was able to stand and hold on to objects
for only a few steps due to poor vision. The relevant
diagnosis was injury to left arm due to gunshot wound.
The examiner concluded that the veteran's helpless status was
due to his blindness, and that he requires regular
assistance.
The critical question to be determined in this case is
whether the veteran's service-connected disability has
resulted in the need for regular aid and attendance of
another person because of resultant helplessness due to
mental and/or physical impairment. Based on its review of
the record, the Board concludes that the criteria have not
been met. In this case, the veteran's only service-connected
disability is residuals of a gunshot wound to the left arm.
As discussed supra, the Board has determined that this
disability is properly evaluated as 20 percent disabling.
Although the veteran's service-connected gunshot wound of the
left arm has caused him some functional impairment, the
competent medical evidence of record does not indicate that
the veteran's service-connected disability alone renders him
bedridden, or unable to care for his daily personal needs or
to protect himself from the hazards of daily living without
assistance from others. Rather, the evidence indicates that
the veteran is not housebound due to his service connected
disorder, and that although he requires aid and assistance,
this is due to his nonservice-connected blindness.
In summary, the veteran is not housebound due to service-
connected disability, and although he requires regular aid
and attendance, the record does not support a conclusion that
the reason for that profound level of disability is, in fact,
due to his service-connected disability alone. Accordingly,
the Board finds that the preponderance of the evidence is
against the claim, and that the claim must be denied.
Duties to Notify and Assist
The Board finds that VA has satisfied its duties to the
veteran under the Veterans Claims Assistance Act of 2000
(VCAA). A VCAA notice consistent with 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about
the information and evidence not of record that is necessary
to substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." This "fourth element" of
the notice requirement comes from the language of 38 C.F.R. §
3.159(b)(1). Pelegrini v. Principi (Pelegrini II), 18 Vet.
App. 112 (2004).
VA has made all reasonable efforts to assist the veteran in
the development of his claims, has notified him of the
information and evidence necessary to substantiate the
claims, and has fully disclosed the government's duties to
assist him. In a letter, dated in January 2005, the veteran
was notified of the information and evidence needed to
substantiate and complete the claims. The January 2005 VCAA
notice complied with the requirement that the notice must
precede the adjudication. Mayfield v. Nicholson (Mayfield
II), 444 F.3d 1328 (Fed. Cir. 2006); aff'd Mayfield v.
Nicholson, No. 02-1077 (U.S. Vet. App. Dec. 21, 2006).
During the pendency of this appeal, the Court further
redefined the requirements of the VCAA to include notice that
a disability rating and an effective date for award of
benefits would be assigned if service connection is awarded.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
No further notice is needed as to any disability rating or
effective date matters. As the claims have been denied, any
questions as to the disability rating or the appropriate
effective date to be assigned are moot. Therefore, VA's duty
to notify the appellant has been satisfied, and no prejudice
to the veteran in proceeding with the issuance of a final
decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993)
(where the Board addresses a question that has not been
addressed by the agency of original jurisdiction, the Board
must consider whether the veteran has been prejudiced
thereby).
The Board further finds that VA has complied with the VCAA's
duty to assist by aiding the veteran in obtaining evidence.
It appears that all known and available records relevant to
the issues on appeal have been obtained and are associated
with the veteran's claims files. The RO has obtained the
veteran's available service medical records, as well as VA
medical records. The veteran has been afforded examinations.
The Board therefore concludes that decisions on the merits at
this time do not violate the VCAA, nor prejudice the
appellant under Bernard v. Brown, 4 Vet. App. 384 (1993).
Based on the foregoing, the Board finds that the veteran has
not been prejudiced by a failure of VA in its duty to assist,
and that any violation of the duty to assist could be no more
than harmless error. See Conway v. Principi, 353 F.3d 1369
(Fed. Cir. 2004).
ORDER
An evaluation in excess of 20 percent for service-connected
residuals of gunshot wound to the left arm is denied.
Special monthly compensation based on the need for regular
aid and attendance, or at the housebound rate, is denied.
____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs